Opinion
(Filed 20 September, 1933.)
Criminal Law L b —
The clerk is without authority to allow defendant's application for appeal in forma pauperis in a criminal case where the statutory affidavit fails to aver that the application is made in good faith, or defendant's second application, intended to correct the deficiency in the first, is made more than five months after the adjournment of the term.
APPEAL by defendants from Alley, J., at February Term, 1933, of BUNCOMBE.
Attorney-General Brummitt and Assistant Attorneys-General Seawell and Bruton for the State.
George F. Meadows for defendants.
Criminal prosecution tried on indictment charging the defendants with conspiracy to rob.
The case was tried at the February Term, 1933, Buncombe Superior Court, which resulted in conviction and judgment of twelve months on the roads against each of the defendants. Notice of appeal given in open court. Time allowed for preparing statement of case on appeal. Appeal bond fixed at $100.00.
Thereafter, on 7 March, 1933, the clerk of the Superior Court, on certificate of counsel and affidavit, which failed to contain averment that the "application is in good faith," entered an order purporting to allow the defendants to appeal in forma pauperis.
More than five months later, 18 August, 1933, the defendants undertook to cure the defect in their affidavit of insolvency by filing new application for permission to appeal without giving security for costs. This application was likewise granted.
Both orders of the clerk, purporting to allow the defendants to appeal in forma pauperis, were improvidently entered: The first for want of sufficient affidavit to support it ( S. v. Martin, 172 N.C. 977, 90 S.E. 502); the second for want of authority to allow it at the time. Powell v. Moore, 204 N.C. 654; S. v. Stafford, 203 N.C. 601, 166 S.E. 734.
The Court is without jurisdiction to entertain the appeal. Powell v. Moore, supra.
Appeal dismissed.